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When Nice Lawyers Get In Trouble

A few years ago, I gave a talk to a nice bunch of in-house lawyers at SuperConference in Chicago about how to prepare for being the target of an investigation or indictment. Afterward, some of the lawyers came up to me and told me that it was a good talk, but they were the wrong crowd.

Things like this don’t happen to lawyers like us, I was told.

And even if they thought it might, it’s not like they or their companies would be willing to commit and any time, effort or, most importantly, money to preparation. They were in the business of making money, not spending it. It was bad enough that the GC wasn’t a profit center; as if they could budget more money in anticipation of problems that nice lawyers never face. Ain’t happening.

At Above the Law, David Mowry wrote a post abut Lauren Stevens, an in-house counsel at GlaxoSmithKline.

Ms. Stevens was not the VP of legal affairs, she was one of many. Just like all those financial “VPs” on the prowl in Wall Street bars. She received a subpoena-like request from a department within the FDA that has no subpoena power. The request asked 15 broad questions, and GSK agreed to comply.

Now, in-house is a bit different than Biglaw in that we don’t immediately start to figure out how to fight or quash such requests. I receive subpoenas all the time, and it’s usually no big deal. We’ll do a risk analysis for the company, and most times the subpoena only tangentially involves us, and we’ll agree to comply. I will call up the AUSA, or other relevant contact, and ask how we can assist. Often, they want some documentation regarding a fraud investigation or illegal exportation practices by a third party. We have an interest in stopping such practices due to the implications for the company, so we readily agree to assist.

As one might expect, they trip all over themselves to curry favor with the government when they think it’s someone else’s butt on the line. It could never be theirs, because, well, they’re the good guys. They help the government. And they never do anything that would turn their dear friends on them. Never.

So let’s review. She responded positively and diligently to the inquiry. She put together a crack team of attorneys and outside counsel to assist in responding. She maintained open lines of communication with the agency. And when mistakes were discovered, they were disclosed, rectified, and steps were taken to avoid the same mistakes occurring. What happened next is not only frightening, but wrong and unjust.

Lauren Stevens became a target. She was indicted. She was tried. To this day, she doesn’t seem to have a firm grasp why. This video of her discussing the case, starting around 23:00, is painful. Things like this don’t happen to nice, helpful lawyers.

The naïveté is just brutal. In a WSJ Law Blog interview, Stevens called it the criminalization of the practice of law. We call it house counsel, used in the pejorative sense of a John Gotti and Bruce Cutler. When lawyers are working for the target company, doing the target’s bidding, spouting the targets line, but believe that the lines of corporate liability don’t spill onto their desk. They are not detached lawyers. They are house counsel for the target. But bad things never happen to nice lawyers.

Fortunately, Lauren Stevens was acquitted after trial, a fact she remarkably takes for granted as if there was never any question she would win because she, as she says, did nothing wrong. The judge didn’t toss the indictment. There was no trial order of dismissal at the close of the prosecution’s case. These things don’t seem to find their way into her consciousness. She was acquitted when the judge refused to let the case go to the jury. Had it gone to the jury, she could have been convicted just as easily, though she shows no recognition of that possibility. Because bad things like that never happen to nice lawyers.

Lauren Stevens was utterly unprepared for what happened to her. David Mowry shows no clue of being prepared. My guess is none of the nice, in-house lawyers, or their corporate executive charges, have lifted a finger to be prepared. And I’m pretty sure that most still have their bestest friends, the U.S Attorney, on speed dial.

It’s not like I didn’t warn you. So are you going to mend your ways now? I didn’t think so. Just complain about the unfairness of it all, like the rest of our clients.

This is one of this articles that elicited so many thoughts that I’m left with nothing to say…

From how naive Stevens is (“I’m not guilty so everything will work out! Just keep cooperating!”), to corporations thinking the DOJ is their buddy even when facing an indictment, to the federal government breaching its duty to the American taxpayers by pursuing frivolous prosecutions without ramification, to the special treatment Stevens received compared to common criminals (who usually don’t get a courtesy call before an indictment), to how the government was allowed to breach the attorney / client privilege like that, and to how just about every trial lawyer knows that actual guilt and innocence is secondary to a candid evaluation of evidence. (“They took my words out of context!”)

There is so much going on that I’m speechless. It’s a lot to think about.

GSK intentionally violated FDA regulations for off-label marketing of Wellbutrin, then, when the FDA came knocking, Stevens told the FDA, in writing, a total falsehood, i.e. that GSK had never done anything wrong in promoting Wellbutrin, and that they had no materials showing any sort of wrongdoing. Everyone agrees this statement by Stevens was completely false; indeed, the evidence of off-label marketing is so clear that earlier this year GSK paid $757M to settle the DOJ’s claims regarding Wellbutrin.

She says she didn’t know it was false, that she was basing it on the best information known to her (an assertion the judge accepted in granting judgment in her favor), which leaves only two possibilities: either she’s wholly incompetent in performing an internal investigation (which is doubtful, given the breadth of her requests to others at GSK and her coordination with other counsel), or, others at GSK (or other outside counsel) hung her out to dry by knowingly feeding her false information for her to parrot to the FDA. With friends like that…

If you want to stay out of criminal trouble, the first step is to not associate with criminals.

Exactly. Essentially everything that we advise against happened here, and in spades. The historical underpinnings for this “cooperative” approach are well known and fairly obvious. What is inexcusable in post-Enron America is that corporations, executive, in-house counsel and their Biglaw counsel have never come to grips with the reality that these are criminal investigations and the government is no longer their best friend. They are targets, and people will be thrown under the bus to save the corporation and pacify the government.

Scott H. Greenfield

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SHG